The U.S. Equal Employment Opportunity Commission recently released the “Promising Practices for Preventing Harassment.” This is a guidance document for employers, that contains harassment prevention recommendations for all employers in four categories. As leaders we have a responsibility to take all harassment claims serious and need to ensure a proactive approach to investigations, communication and accountability as it related to workplace harassment claims, sexual harassment, retaliation, bullying, workplace violence concerns, etc.

The Four Categories:

Leadership and Accountability: “The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated.”[i]

Comprehensive and Effective Harassment Policy: “A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy.”[ii]

Effective Harassment Training: “Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.”[iv]

For additional information on the Promising Practices for Preventing Harassment guidance (each of the four have additional recommendations on the website) for your organization and workforce, the link is below:

Congress passed a law on January 22 to delay the affordable Car Act’s 40 percent excise tax on high-value healthcare plan for two years. The Cadillac tax was set to take effect in 2020, under the new law, the tax will be delayed until 2022.

What to expect in 2022:

$10,200 for individual coverage ($11,850 for qualified retirees and those in high-risk professions).

$27,500 for family coverage ($30,950 for qualified retirees and those in high-risk professions).[v]

Under the new administration we could see significant changes to the Affordable Care Act and healthcare in general. Continue to monitor for updates and changes, that can and will impact your workforce. If you are confused seek guidance, healthcare law continues to evolve in complexity at the federal and state levels.

As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A. This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018. The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.). The summary must include the total number of job-related injuries and illnesses that occurred in 2017.

Areas to remember:

Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.

What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300. The information posted should also include the number of employees and the hours they worked for the year. No recordable illnesses or injuries? However, an organization must still post the form, with zeroes on the appropriate lines.

“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]

As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration. Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law. Public sector rules will vary as well. If you have questions, seek guidance. Safety rules and regulations can be complex, just as HR laws and regulations are.

A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies. As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.

Below are 5 areas to watch related to employee handbooks:

Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer). Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.

Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements. These decisions can impact our organizations. I have not implemented arbitration agreements. However, they are growing in popularity.

Sexual Harassment/Harassment Policies: This speaks for itself. California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently. Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures. Organizations need to be proactive and not reactive to issues.

Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change. The state has a website full of information to utilize as we move forward in 2018.

Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana. Medical marijuana law(s) continues to evolve. “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]

As laws continue to evolve, now is the time to review handbooks, policies and procedures. If you are unclear on a path-forward or what to look for, seek guidance. Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.

2018 IRS Mileage Rate:

“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:

5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.

18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.

14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]

As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.

In late December 2017, the IRS announced an extension for employer’s providing Affordable Care Act forms to employee’s. As the future of the Affordable Care Act is still undecided, employers should be proactive in distributing and communicating information to the workforce.

Below are 4 updates for the ACA:

Extension: The IRS extended the date to March 2, 2018 to distribute the 2017 forms to employees. This is a 30-day extension to the regularly scheduled date of late January 2018.

Penalty: “The IRS, which announced the extension December 22 in Notice 2018-06, also said it will not impose penalties on employers that can show that they made good-faith efforts to comply with the Affordable Car Act’s (ACA’s) information reporting requirements for plan year 2017.”[1]

IRS Filing Deadline: The due dates for filing 2017 returns with the IRS is not extended. The due dates to file information returns with the IRS remain; February 28 paper filers and April 2 electronic filers.

The Future and Beyond: “Although this is the third year that the IRS has granted transition relief for reporting, the notice states significantly that the IRS does not anticipate granting transition relief for 2018 or future years,” Jost pointed out. “This statement highlights the fact that, although the individual mandate penalty is repealed as of 2019, the reporting requirements that support it, as well as the employer mandate, remain in effect.”[2]

As leader’s, we must be proactive in approaching the Affordable Care Act’s current and future legislation. As the individual mandate penalty is repealed, the healthcare law is still the law of the land, for now. Continue to watch for more changes in 2018 and 2019. The ACA is complex, seek guidance if you are unclear on a path-forward.

As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.

Below are 3 upcoming changes in New York State:

Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.

Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.

Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.

Below are 3 potential changes to watch in 2018:

NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018

Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.

Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.

Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!

Recently, we have seen a significant number of workplace sexual harassment allegations and legal claims in the media. Many of these allegations have been ignored for years, if not decades. As organizational leaders, we have an obligation to take harassment claims of any nature seriously and address these claims proactively. Investigating sexual harassment allegations, bullying, retaliation, etc. and addressing these issues is never easy, but it is necessary.

Below is a summary of my 5 thoughts on sexual harassment investigations:

Take it Seriously: As recent news has shown us that ignoring a problem and/or covering it up isn’t a solution to any employee relations issues or sexual harassment claim. Employees should feel comfortable discussing these allegations with a supervisor, manager, business owner or the human resources department and have the confidence that the system will not fail them. Make time to listen and address any concerns that are brought to your attention. The worst thing we can do is ignore it or that make statements, that we are too busy to listen and proactively deal with the situation.

Ensure Confidentiality: Organizations must protect the confidentiality of employee claims to the best of its ability. Within protecting confidentiality, we must also conduct a prompt and proactive investigation. Explain to the party putting forth the allegations and all individuals involved in the investigation process, that all information gathered will remain confidential, to the extent possible for an effective investigation. However, organizations cannot guarantee absolute confidentiality to any party involved in the investigation.

Provide Interim Protection: “Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complaints should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution.”[i] Reinforce policies and communicate proactively with the party that has put forth the allegations.

The Investigator: The appropriate investigator is necessary to ensure credibility of the investigation. Investigators must have the ability to investigate objectively without bias and remain neutral. The investigator should have no stakes in the outcome. There should be no personal relationships with either party involved in the situation. Investigators need investigation skills that include; previous investigatory experience and working knowledge of labor and employment laws. They must be able to build rapport with the parties involved, have attention to detail (notes, questions, fact-finding and summarizing) and the right temperament to conduct the interviews. Investigating allegations is not easy. Patience, efficiency and fluid communication is necessary to be effective.

Investigation Closure: Ensure that thorough notes are documented throughout the process, interviews are closed out and the investigation ends. Loop closing communication is necessary to ensure investigations are effective and impactful. Leaving the alleging party with no closure can lead to additional issues. This does not mean communicating discipline, training and/or termination impacts.

Throughout my career, I have conducted many workplace investigations, including; harassment, bullying, retaliation, workplace violence, threats and sexual harassment. Investigations are never easy, but they are necessary. Doing the right thing isn’t always easy, but it is necessary. If you are unsure on investigating or recognize that an internal investigation will not be effective and impactful, bring in a third party to assist the organization throughout the process and seek the necessary guidance to protect your workforce and your organization.

On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws. The laws impact “retail” and “fast food” employers throughout the city. These significant changes impact; breaks between shifts, predictable hours and on-call scheduling. These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.

Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:

Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.

Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts. When an employee works a closing shift one night and opens the next day. The law prohibits these consecutive shifts unless there is an 11-hour break between shifts. However, employees can agree to clopening shifts, but must be paid $100 each time.

Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically. “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]

Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance. “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]

On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance. There are additional exceptions for workers covered by collective bargaining agreements.

These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States. The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners. If this impacts your organization, ensure you understand your obligations as an employer under the law. Communicate and train supervisors and managers on these changes. These are significant changes to the work relationship and will impact many organizations throughout New York City.

As the year comes to a close, it’s important to note that on November 6, 2017 the 5th U.S. Circuit Court of Appeals granted motion to the Department of Labor (DOL), to halt litigation over the 2016 overtime rule. This motion makes it unlikely that the 2016 overtime rule will ever take effect. If you recall in November 2016, the minimum salary level threshold for overtime and exempt status would have been raised to $47,476 per year, impacting more that 4-million people.

Below are 2 updates from the recent ruling:

No Ambiguity: “The DOL wants to preserve its right to have the 5th Circuit decide that it has the authority to set whatever salary level it ultimately selects…potentially removing a precedent that could serve as a basis for challenging the next overtime rule the department issues.”[i]

New Rulemaking: When the DOL under the current administration issues a new rule, it can seek to have the current appeal dismissed and the court’s decision vacated. The focus currently is on a new rule that incorporates a more modest increase in the salary threshold.

The rule making process is scheduled to begin in July 2018. Remember, this is a federal law; state specific laws can vary on exempt and non-exempt status. In New York State, we have laws that impact Executive and Administrative Classifications and overtime exemption level thresholds, based on the location throughout the state. These rates will increase on January 1, 2018. Remember to review state and federal guidelines, to ensure legal compliance.

Additionally, the minimum wage rate in New York State is scheduled to increase on December 31, 2017. This again is based on location. In Upstate New York, the rate increases from $9.70 to $10.40/per hour. The federal minimum wage has not been increased since 2009.

If you are confused by the classifying positions and exemption changes in New York State, seek guidance and ask questions. Classifying positions can be complex. Do not assume when classifying positions as exempt or nonexempt. There have been multiple court rulings lately regarding mis-classification of positions as exempt.

As we are approaching the end of 2017, understanding the federal and state overtime rules is necessary, as certain thresholds will change. The current federal law requires employers to pay non-exempt workers time and a half for all hours worked beyond 40 in a workweek. A workweek does not have to be the same as a calendar week, it can be defined as a regularly recurring block of seven consecutive 24-hour periods. The Fair Labor Standards Act, “reserves to states the right to enact more-generous overtime laws.”[i] In New York State, we see a difference in non-exempt and exempt salary definitions for the Executive and Administrative exemption definitions, which currently follow the FLSA definition on duties tests.

Below are 3 definitions in federal and state overtime pay rules:

Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate. However, I have seen employers accrue overtime on top of leave time. Be consistent with your overtime payments and ensure it is in your policy. If you make a change to not accrue, communicate the change to your workforce.

Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.

Multi-State Employers: Research current laws and regulations at the federal and state level. Laws across the country vary by state. Laws regarding overtime pay and double time pay will vary. Industry specific laws also exist in certain states. “Employers must also be industry-specific daily overtime rules-such as in Oregon, where manufacturing workers must be paid premiums working 10 hours.”[iii]

The Fair Labor Standards Act was established in the 1930’s and regulations have evolved, as our society has evolved. We continue to see significant changes at state levels and could see changes at the federal level, related to exempt and non-exempt thresholds, as well as minimum wage. December 2017 is approaching quickly, ensure that your executive and administrative positions are defined and legal under current NY State exemption law. Also remember that minimum wage will be increase in NY State. Are you prepared? Do you have updated labor and employment posters? If you are unclear in defining the roles, seek guidance.

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.

Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.